Why Amazon Was Wrong to Back Down from Authors’ Guild

Amazon unveiled Kindle 2.0 a few weeks ago and with it the announcement that the Kindle 2.0 would have the ability to convert the text to speech. This feature has been referred to as TTS. Almost immediately, Authors’ Guild voiced dissent over TTS. "They don’t have the right to read a book out loud," said Paul Aiken, executive director of the Authors Guild. "That’s an audio right, which is derivative under copyright law." Roy Blount, Jr., the president of AG, authored an editorial calling it the “Kindle Swindle” because the TTS was employing an audio function without paying for it. Amazon has given up the fight without a whimper saying that the TTS feature will be allowed only with publisher approval.

In the eye’s of content creators, Author’s Guild might seem like a savior. After all, it sued Google and won a huge settlement for itself. Part of the $125 multimillion dollar settlement was the creation of the Book Rights Registry. The Registry was set up and paid $34.5 million and for each payment made to the author through the Google Settlement, the Book Rights Registry gets a portion of that payment. So, over 20% of the entire settlement was the creation of the BRR. Conveniently, the BRR is set up to a) continue to generate revenue from Google Book Ads at the expense of authors and b) to manage a rights database and c) to moderate disputes between rights holders.

Suffice it to say that I’m skeptical about Author’s Guild.

Most of the commentary against the Kindle TTS is not that it’s a valuable substitute for audio books right now, but that some day it will be. Roy Blount, Jr. wrote

You may be thinking that no automated read-aloud function can compete with the dulcet resonance of Jim Dale reading "Harry Potter" or of authors, ahem, reading themselves. But the voices of Kindle 2 are quite listenable. There’s even a male version and a female version. (A book by, say, Norman Mailer on Kindle 2 might do a brisk business among people wondering how his prose would sound in measured feminine tones.)

And that sort of technology is improving all the time. I.B.M. has patented a computerized voice that is said to be almost indistinguishable from human ones. This voice is programmed to include "ums," "ers" and sighs, to cough for attention, even to "shhh" when interrupted.

Now it may be that Blount doesn’t know or care what the copyright law it, but the fact is that there is no “audio right” as he likes to use in the New York Times editorial because the “audio right” is no more than a derivative right of the original copyrighted work. When it comes to a book, the copyrighted work is the content of the book itself, not the sound recording. A sound recording is its own copyrighted content. The TTS cannot infringe on the book’s audio recording, only on the right of the book’s copyright holder to derivative audio of the book.

Infringement requires the publication of a copyrighted work in an improper way. The definition of publication includes, “[t]he offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display.” The Copyright Act further defines public performance:

To perform or display a work "publicly" means -‘

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

The Kindle itself does not violate any of the copyright holder’s bundle of rights. Instead, copyright holders can only argue that the Kindle enables the end user, readers like you and I, to violate the copyright holder’s right to public performances of their works. At best, Amazon would be vicariously/contributorily liable for the end users misuse of the Kindle TTS.

The US Supreme Court addressed the issue of Sony’s Betamax’s copyright capabilities: ” If vicarious liability is to be imposed on Sony in this case, it must rest on the fact that it has sold equipment with constructive knowledge of the fact that its customers may use that equipment to make unauthorized copies of copyrighted material.” Sony v. Universal.

As Courtney Milan stated on her blog, the reader is sold her own set of rights with the book. In the case of physical books, she can resell the book, share it, or even scan it in and create a digital copy of the book. The ability to utilize software to read the book aloud in a private, single person performance, is not a) publication or b) a violation of the derivative copyright

If we look back at the time shifting case of Sony v. Universal, I think we can seem some guideposts for interpreting this issue. Universal sued Sony arguing that its recording capabilities of the Betamax constituted infringement. First, the Kindle itself is used for broad legitimate and unobjectionable purposes. Ditto for the TTS, even assuming that the TTS would somehow be infringing. The TTS software is no per se violative because it can be used with so many items not under copyright.

Nor do I find that the DMCA applies to restrict the use of TTS because DMCA applies to copyright circumvention. In other words, you have to show that the underlying right is copyrightable. In this case, the right of a reader to have a book read aloud in the privacy of his home is not a derivative right of the copyright holder.

Second, the Kindle is used in the privacy of one’s home or by a single user. Even if the TTS would be read to a small group of people in one’s home and not in public, it would still fall outside the confines of the Copyright Act.

Third, there is no showing that the robotic TTS voice will reduce the market for the audio books. I don’t care that someday it might, today it won’t and the court isn’t going to decide an issue based on what someday technology may or may not be able to accomplish. Someday, AI will write genre fiction books and so we must put a stop to AI technology right now! (and if you dispute this, then why are you saying that individual audio book performers are so easily replaceable).

Fourth, there is a societal benefit. Blind readers want the absolute right to read what book they want, when they want. One of my readers complains to me that she has to wait until the book shows up on a sight impaired reading website or has to find someone to help her strip the DRM or find a pirated book.

What AG is trying to do is limit the reader’s use of a product and basically turn digital books into leases. As digital book owners, we don’t have the right to share the book; to resell the book; to move the book from one device to another; and now private performances of the book for non commercial use are being limited single handedly by AG. There is simply no difference in the Kindle reading aloud to my kid and my reading aloud to my kid. They are both performances of copyrighted material accomplished in the privacy of my home.

Rather that seeing digital technology as a way to expand monetary gain, AG is trying to suppress the technology in a time of declining readership and for what? By restricting the reader’s legitimate rights when circumvention of the software locks are easily obtained, the AG’s actions are only suppressing legitimate sales. After all, why pay for a legitimate version when an illegitimate version allows the readers to utilize the full panoply of their legal rights?

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Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She self publishes NA and contemporaries (and publishes with Berkley and Montlake) and spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty.
You can reach Jane by email at jane @ dearauthor dot com

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